In 2011, Senate Republicans tried to effectively repeal the law creating the Consumer Financial Protection Bureau by simply refusing to confirm anyone to lead this agency. Similarly, by leaving several seats on the National Labor Relations Board vacant, Senate Republicans could effectively shut down this agency as well. President Obama eventually blocked these efforts to shut down two agencies by recess appointing leaders to their ranks. So when the severely conservative United States Court of Appeals for the D.C. Circuit struck down Obama’s recess appointments, it held that the political party American votes did not chose to control the White House or the Senate (or, for that matter, the House) has the unilateral authority to shut down agencies created by an Act of Congress.
This is not an isolated incident for the D.C. Circuit, which, due to its steady diet of major national security and regulatory cases, is second in power only to the Supreme Court of the United States. Two judges on this powerful court recently signed an opinion claiming that all labor, business or Wall Street regulation is constitutional suspect — one of whom was the author of Friday’s attack on the recess appointments power. Meanwhile, four years after George W. Bush’s policies were soundly rejected by the American people, the D.C. Circuit may have done more than any other group to keep conservative environmental policies in place. At one point, the Republican court struck down regulations that would “prevent between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.”
Currently, there are four vacancies on the DC Circuit, which means that if President Obama fills all of these open seats, he would break the Republican Party’s hold on this court and Democratic appointees would enjoy a 7-4 majority among the court’s active judges. Unfortunately for people who think Republicans shouldn’t be able to unilaterally shut down agencies, Senate Republicans are working hard to make sure that doesn’t happen.
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